R. v. Breault – Roadside Breath Test Demands
When a Roadside Breathalyzer Demand Is Not Proper
When defending a charge of refusing a roadside breath test, an important question is whether the police made a proper and legal breath demand in the first place. Police procedures matter because a driver can only be found guilty of Failure or Refusal to Comply with Demand, if the demand for a breath sample was legally valid.
In this case the judge ruled that Police must have immediate access to an approved screening device when making a roadside breath test demand. If the device is not available, the breath demand is not lawful and the driver cannot be charged with refusing the test.
With more than 20 years of criminal law experience, former Crown Attorney Nicholas Charitsis has spent decades handling impaired driving and breath-test cases. He has earned more than 350 five-star Google reviews from former clients. If you are facing a DUI or refusal charge, his experience makes him a DUI lawyer worth speaking to about your case.
Call Nicholas Charitsis directly at 416-731-7113. There is no obligation. Tell him what happened, ask your questions, and find out how he can help fight the charge.
What Happened in R. v. Breault?
Forest trail patrollers in Val-Bélair, Quebec, reported seeing an intoxicated man driving an ATV.
When the police arrived, they learned that the driver had parked the ATV and was about to leave the area on foot.
The officers approached Mr. Breault as he was walking away and stopped him. An officer noticed that his eyes were bloodshot and that his breath smelled strongly of alcohol. Mr. Breault admitted drinking one beer but denied that he had been driving the ATV.
One officer spoke with the forest trail patrollers who confirmed that Mr. Breault was the person they had seen driving the ATV.
The officers didn’t believe they had enough grounds to arrest the man for impaired driving but they did have reasonable grounds to believe he had consumed alcohol and subsequently wanted the man to take a roadside screening device test.
There was one problem. Neither police officer had an approved screening device with them.
The officers then radioed for another officer to bring the screening device to them. The officer with the device was about 10 to 15 minutes away.
After calling for the device, police made a roadside breath test demand to Breault. They did not tell Mr. Breault that the screening device was NOT with them and that they had called for one to be brought to them.
Mr. Breault repeated that he wasn’t driving the vehicle and subsequently he was refusing to take any tests. Breault, refused to take a test 3 times to the officers.
Subsequently because of the refusal, the officers cancelled the request for the device, and charged Breault with Refusing a Roadside Screening Device.
Relevant Case Law:
R. v. Breault — Supreme Court of Canada (2023 SCC 9, [2023] 1 S.C.R. 277)
View the full decision Supreme Court of Canada (Supreme Court of Canada)
Why Was the Roadside Breath Demand Not Proper?
The Criminal Code of Canada required Mr. Breault to provide the roadside breath sample forthwith. In simple terms, he had to provide the sample right away.
However, the police also had to be ready to conduct the roadside breath test right away. They could not demand immediate compliance while waiting for another officer to bring an approved screening device.
What Does “Forthwith” Mean in Criminal Law?
“Forthwith” means immediately or without delay. When police make a proper roadside breath demand, the driver must provide a breath sample right away.
The requirement works both ways:
- The driver must be ready to provide the breath sample right away.
- Police must be ready to take the breath sample right away.
In Mr. Breault’s case, neither officer had an approved screening device with them. Another officer had to bring one to the scene. The device still had not arrived by about 2:00 p.m.
The Supreme Court of Canada ruled that police must have immediate access to an approved screening device when making this type of roadside breath demand, unless unusual circumstances explain the delay.
Because police were not ready to conduct the roadside breath test, the breath demand was not proper. Mr. Breault could not be found guilty of refusing it.
What Did the Courts Decide?
Mr. Breault did not win at his first trial. The Quebec Municipal Court found him guilty of refusing the roadside breath test. He appealed, but the Quebec Superior Court upheld that decision.
Mr. Breault appealed again. This time, the Quebec Court of Appeal overturned the conviction. The Court ruled that police needed immediate access to an approved screening device when they made the breath demand.
The Crown then took the case to the Supreme Court of Canada.
What Did the Supreme Court of Canada Decide?
The Supreme Court agreed with the Quebec Court of Appeal. Police did not have immediate access to a roadside screening device, and there were no unusual circumstances that explained why the device was not available.
As a result:
- The roadside breath demand was not proper.
- Mr. Breault’s refusal was not a criminal offence.
- The not-guilty decision remained in place.
The Supreme Court dismissed the Crown’s appeal in a unanimous decision on April 13, 2023.
The decision sends an important message in impaired driving cases. A refusal alone does not prove the offence. The court must also look at whether the police made a proper breath demand and followed the rules required by law.
Can Police Delay a Roadside Breath Test?
Yes, but only in unusual circumstances. The Supreme Court said there can be situations where a roadside breath test does not have to happen immediately.
For example, a short delay can sometimes be allowed when it is needed to make sure the breath test produces a reliable result. Safety concerns can also affect how quickly the test can be completed.
However, simply not having an approved screening device at the scene is not an unusual circumstance. Police cannot justify the delay because there are not enough devices available, because of how equipment is distributed, or because it is more convenient to have another officer bring one.
What Are “Unusual Circumstances”?
The Supreme Court did not create a complete list. Each case depends on what happened during the impaired driving investigation.
The important distinction is the reason for the delay. A delay connected with properly using the device or getting a reliable breath sample can sometimes be allowed. A delay caused simply because police did not bring the roadside screening device is different.
For someone charged with refusing a breath test, this means the defence should look beyond the refusal itself. Why was there a delay? Was the breathalyzer available? When was the demand made? Could the test actually have been performed right away?
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What Does R. v. Breault Mean for Your Case?
R. v. Breault shows that a refusal does not automatically mean a person is guilty of refusing a breath test. The police must first make a proper roadside breath demand.
When reviewing a refusal charge, as your defence lawyer, we examine how the demand was made, whether an approved screening device was available, how long police expected you to wait, and whether the roadside test could have been given right away.
Police procedures matter. If the breath demand was not proper, the refusal charge can be won.
Call and Let’s Discuss your Case
If you have been charged with refusing a roadside breath test, call Nicholas Charitsis at 416-731-7113.
Tell him what happened. He can review the police evidence, explain the defences that could apply, and discuss how to fight the charge.
Frequently Asked Questions About Roadside Breath Testing
Q. What happens if I refuse a roadside breath test?
A. Refusing a proper roadside breath test demand is a criminal offence in Canada. You can be arrested and charged with refusing to provide a breath sample. A conviction can result in a criminal record, a driving prohibition, a fine and other penalties.
However, the Crown must still prove that the police made a proper demand and that you refused or failed to provide the required sample without a reasonable excuse. The police procedure and circumstances surrounding the breath demand can become important parts of the defence.
Q. What grounds do police need to demand a roadside breath test?
A. It depends on the situation. Police can demand a roadside breath sample when they have reasonable grounds to suspect that a person has alcohol in their body and drove within the previous three hours.
Reasonable suspicion can come from the smell of alcohol, an admission of drinking, witness information or other evidence.
Police can also use mandatory alcohol screening during a lawful traffic stop. In that situation, police can demand a roadside breath sample without first suspecting that the driver has been drinking. The officer must have an approved screening device in their possession.
Q. What happens if police did not see me driving? Can they still demand a breath test?
A. Yes. Police do not always have to personally see you driving to make a roadside breath test demand.
Information can come from witnesses, other police officers, video evidence or other reliable sources. Police can use this information when deciding whether they have reasonable grounds to suspect that you recently drove with alcohol in your body.
That happened in R. v. Breault. Police did not see Mr. Breault driving the ATV. Forest trail patrollers told police that they had seen him driving.
Q. What does a roadside screening device do?
A. An approved screening device is a small breath-testing instrument used by police at the roadside. The driver blows into the device, which tests the breath for alcohol.
The roadside breath test helps police decide whether further investigation is required. It is different from the more formal breath testing that can follow after an arrest for an impaired driving offence.
Q. Can I speak to a lawyer before taking a roadside breath test?
A. Generally, you do not have the opportunity to speak with a lawyer before providing an immediate roadside breath sample. Roadside screening is designed to happen quickly.
If police make a proper roadside breath demand, the driver is expected to provide the sample right away. Police must also be ready to conduct the test without unnecessary delay.
If the investigation leads to an arrest or further breath testing, the right to speak with a lawyer becomes an important part of the impaired driving investigation.
